IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE MRS.JUSTICE S.SUJATHA PROBATE C.P.No.5/2018 BETWEEN :
1. DATTATREYA S/O SUBBA RAO, AGED ABOUT 53 YEARS, R/O 9/1, YASHASWINI BETWEEN 6TH & 7TH CROSS, 6TH MAIN, MALLESHWARAM, BENGALURU – 560003.
2. Mrs. SHASHIKALA W/O DATTATREYA, AGED ABOUT 50 YEARS, R/O 9/1, YASHASWINI BETWEEN 6TH & 7TH CROSS, 6TH MAIN, MALLESHWARAM, BENGALURU – 560003 ...PETITIONERS (BY SRI SHRISHAIL A. HUBLI, ADV.) AND :
1. K.N.SHUBHASHREE W/O CHANDRASHEKAR K.P., AGED ABOUT 48 YEARS R/O No.17/1, SHRINIDHI NILAYA, 1ST MAIN, 10TH STREET, DEVASANDRA NEAR BBMP CONTACT POINT K.R.PURA, BENGALURU – 560036.
2. N.VIDYASHREE W/O M.KRISHNA, AGED ABOUT 42 YEARS R/AT No.30, MOUDGALYA, 3RD MAIN, 4TH CROSS, BASAVANAPURA MAIN ROAD, GAYATHRI EXTENSION DEVASANDRA, K.R.PURA BENGALURU – 560036 …RESPONDENTS (BY SMT.DEEPASHREE, ADV.) THIS PROBATE C.P. IS FILED UNDER SECTION 263 OF THE INDIAN SUCCESSION ACT, PRAYING TO REVOKE AND ANNUL THE LETTERS OF ADMINISTRATION GRANTED IN PROBATE C.P.NO.4/2015 DATED 18.01.2016 AND TO CONSIDER THE SAID PROBATE PETITION DENOVO AND HAS CONTESTED MATTER, AND ETC.
THIS PETITION COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
O R D E R Petitioners are before this Court, praying to revoke and annul the letters of administration granted by this Court in Probate C.P.No.4/2015 dated 18.01.2016 and to consider the said Probate Petition denovo.
2. The petitioners are claiming to be the relatives and legal heirs of the deceased Smt.Lalitha @ Lalithamma. It is the grievance of the petitioners that they were deliberately left out of the probate proceedings before this Court by the respondents to ensure that the order be passed without taking citation to them. It is alleged that as a result of the said fraudulent and defective proceedings initiated by the respondents, suppressing the material facts, the order dated 18.01.2016 came to be passed granting the letters of administration in favour of the respondents. It is further contended that subsequent to the granting of letters of administration in favour of the respondents, a legal notice dated 18.09.2017 has been issued by the respondents calling upon the petitioners to hand over the possession of the premise [one of the property involved in the letter of administration] which has been permitted by Smt.Lalitha @ Lalithamma to live in, being a relative and legal heir.
3. Learned counsel Sri.Shrishail A. Hubli appearing for the petitioners reiterating the grounds urged in the petition, submitted that the petitioners are the legal heirs of the deceased Smt.Lalitha @ Lalithamma who died in the year 2014 intestate. It is contended that the petitioners are the son and daughter-in-law of Sri.Subbarao, an elder son of Sri.Srinivas. Deceased Smt.Lalitha @ Lalithamma is one of the daughter of Smt.Nagamma, daughter of Sri.Srinivas. Hence, petitioners are entitled to inherit the property rights of the deceased Smt.Lalitha @ Lalithamma on par with the respondents. Reliance is placed on the judgment of the Hon'ble Apex Court reported in AIR 2008 SC 295 [Basanti Devi V/s. Raviprakash Ramprasad Jaiswal] and AIR 2005 CALCUTTA 343 [Smt.Chunibala Barui and others V/s. Lakshmimani Adhikary and Other].
4. Learned counsel for the respondents has filed Statement of Objections denying the rights of the petitioners as legal heirs of the deceased Smt.Lalitha @ Lalithamma. It was argued that the respondents are the daughters of Smt.S.Sulochana, sister of Smt.S.Lalitha @ Lalithamma who died intestate. Provisions of Section 15 and 16 of the Hindu Succession Act, 1956 ['Act' for short] were referred, to substantiate the arguments in as much as the rights of the respondents herein, to succeed the properties of the deceased Smt.Lalitha @ Lalithamma.
5. I have carefully considered the arguments advanced by the learned counsel appearing for the parties and perused the material on record.
6. The genealogy undisputed by the parties is as under:
GENEALOGY Father - Srinivasa Elder son Daughter Son Daughter Sri.C.Subbarao Smt.Nagamma Sri.C.Ramaswamy Smt.Seethamma Sri.Suryanarayanashastri [Though married, no issues] 1. Smt.Sulochana [2 daughters] [Shubhashree + Vidyashree] 2. Kum. S.Lalitha [unmarried] 4 children 1] Sri.Nagendra Smt.Geetha 2] Sri.Manjunatha Sri.C.S.Dathathreya 3] Sri.Prasad Sri.C.S.Chandrashekhara 4] Sri.SrinivasaÀ Sri.C.S.Guruprasad 7. The said genealogy indicates that Smt.Nagamma married to Sri.H.Suryanarayanashasthri had two daughters namely, Smt.Sulochana and Smt.S.Lalitha @ Lalithamma. Respondents herein are the daughters of Smt.Sulochana who pre-deceased Smt.S.Lalitha @ Lalithamma. It is not in dispute that the properties are governed by the provisions of the Act. Section 15 of the Act deals with the General rules of succession in the case of female Hindus. It contemplates that the property of a female Hindu dying intestate shall devolve according to the rules set out in Section 16, – (a) firstly, upon the sons and daughters (including the children of any pre- deceased son or daughter) and the husband;
(b) secondly, upon the heirs of the husband;
(c) thirdly, upon the mother and father;
(d) fourthly, upon the heirs of the father; and (e) lastly, upon the heirs of the mother.
(2) Notwithstanding anything contained in sub-section (1),— (a) any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the father; and (b) any property inherited by a female Hindu from her husband or from her father-in-law shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the husband.
8. Section 16 of the Act deals with the Order of succession and manner of distribution among heirs of a female Hindu. Rule 1 provides that among the heirs specified in sub-section [1] of Section 15, those in one entry shall be preferred to those in any succeeding entry, and those included in the same entry shall take simultaneously. Rule 2 provides that if any son or daughter of the intestate had pre-deceased the intestate leaving his or her own children alive at the time of the intestate’s death, the children of such son or daughter shall take between them the share which such son or daughter would have taken if living at the intestate’s death. Rule 3 provides that devolution of the property of the intestate on the heirs referred to in clauses [b], [d] and [e] of sub-section [1] and in sub-section [2] of Section 15 shall be in the same order and according to the same rules as would have applied if the property had been the father’s or the mother’s or the husband’s as the case may be and such person had died intestate in respect thereof immediately after the intestate’s death.
9. In the present case, it is not in dispute that Smt.S.Lalitha @ Lalithamma was the sister of Smt.Sulochana, mother of the respondents and died intestate in the year 2014. In terms of Section 15[1] of the Act, the property of Smt.S.Lalitha @ Lalithamma shall devolve upon the heirs of her father. Sri.H.Suryanarayana Shasthri and Smt.Nagamma had two daughters. Smt.Sulochana, [pre-deceased Smt.S.Lalitha @ Lalithamma] and Smt.S.Lalitha @ Lalithamma. Hence, children of Smt.Sulochana shall be Class-I heirs of the deceased Smt.S.Lalitha @ Lalithamma. The claim of the petitioners that they are the legal heirs of Smt.S.Lalitha @ Lalithamma on par with the respondents cannot be countenanced for the reason that the petitioners are claiming their rights through their father Sri.C.Subbarao, maternal uncle of Smt.S.Lalitha @ Lalithamma. The property would devolve upon the heirs of the mother only in the absence of the heirs of the father.
10. In the case of Basanti Devi supra, the Hon'ble Apex Court while considering the question as to whether an application under Section 263 of the Indian Succession Act, for a revocation of grant of probate would be maintainable, inter alia, on the premise that the appellants’ name therein, was not cited in the said application for grant of probate in the context of a Will said to have been executed by one Lakhpati Devi widow of late Mashadeo Jaiswal in favour of the respondent therein who was one of the grandsons of late Bhagwatidina, a brother of late Mahadeo Prasad, appellant therein claiming that the said Lakhpati Devi had executed another Will, observed that the provisions contained in Sub-section [3] of Section 283 are mandatory in nature. Once the statutory requirements are found to have not been complied with, an application for revocation of the grant of probate would be maintainable in terms of Section 263 of the Act, apart from the fact that non-publication of citation could be one of the grounds to revoke the grant of probate. Explanation [c] appended thereto in a case of such nature would be attracted. There is no cavil on the legal proposition canvassed by the petitioners placing reliance on the said judgment. However, the said legal proposition is not applicable to the facts and circumstances of the case since the petitioners are claiming the rights of succession through the heirs of the mother of deceased Lalitha @ Lalithamma during the existence of the heirs of the father.
11. In the case of Smt.Chunibala Barui supra, the Hon’ble Calcutta High Court, in the context of one Sitaram Das Bairagya who had executed a registered will and the claim made by the appellant therein resulting in the exparte grant of letters of administration in his favour, further the respondents therein claiming to be the legal representatives, praying for setting aside the grant of letters of administration on the question of locus standi raised, observed that in terms of Section 263 of Indian Succession Act, even in the absence of any application by a person interested in the estate of the testator, the Court of its own motion can revoke a grant if it comes to the knowledge of the Court that any of the circumstances mentioned in the said Section is present relating to the claim of inheritance. Regarding the property inherited by a childless widow from her husband observed that such rights goes back to the heirs of the husband after her death. The said judgment is no way applicable to the facts of the present case.
12. Learned counsel for the petitioners also made an endeavour to submit that in the absence of the direct heirs of Smt.S.Lalitha @ Lalithamma, the properties shall vest with the Government. The arguments of the learned counsel for the petitioners are wholly misconceived. In view of the provisions of Act as discussed above, the respondents being the Class-I legal heirs are alive, therefore, there is no substance in the arguments canvassed by the learned counsel for the petitioner.
13. It is apparent that the respondents have initiated eviction proceedings against the petitioners relating to one of the property involved in the letter of administration. O.S.No.4466/2018 is pending before the City Civil Court at Bengaluru in this regard. In such circumstances, the petitioners have approached this Court seeking for annulment/revocation of the letter of administration issued by this Court. The conduct of the petitioners prima-facie evinces about the attempt made by them to protect their possession with the property, the subject matter of the lis between the parties. No such efforts can be appreciated in the present proceedings, for the reasons aforegoing.
The petition is devoid of merits, accordingly stands dismissed.
Sd/- JUDGE NC.